Imagine two parties locked in a bitter and acrimonious dispute that has gone through six years of hotly contested litigation. At issue are the ownership and control of at least a dozen commercial and residential properties valued in the tens of millions of dollars.
The litigants in this case were associated for nearly 40 years and had built up this large real estate enterprise from scratch. Unfortunately, they had a major and seemingly irreparable falling out and were no closer to resolving this case than they had been at its commencement. One of the litigants was a Latino immigrant, who felt deeply wronged by his former partner.
It is an axiom of mediation that emotional forces can disrupt communication and produce non-productive, if not outright irrational, decision-making. Although the broad outlines of the settlement should have been apparent to both sides for a long time, what was missing was the ability of a mediator to get beyond the parties’ huge emotional investment. What altered the negotiations was that the mediator almost always spoke in Spanish with this litigant and always listened very carefully to what he said and to what he did not say. This settlement, however, would be a rarity in today’s world of ADR because of the scarcity of Latino ADR practitioners in the United States.
Familiarity with cultural nuances, fluency in a language and diverse life experiences can be tremendously beneficial in the resolution of a dispute. A neutral who has these qualities may be much better suited to facilitate the disposition of a case precisely because so much of what drives litigation has to do with hidden agendas and personal idiosyncrasies. It has been said that “[a] mediator’s ability to navigate the cultural differences across disputing parties is paramount for success of dispute resolution …cultural competence is an essential skill in a mediator’s tool-kit… Cultural competence is a central skill a mediator must master.” These skills most come to bear during the private caucus sessions where a mediator in a confidential setting tries to gain the trust of a litigant.
Unfortunately, even as the United States becomes more and more diverse, there is a dearth of professional mediators from minority backgrounds. There are few statistics available, but most ADR providers mirror those from the federal bench, partner ranks in Global 100 Law Firms, C-suite and general counsel ranks of Fortune 100 companies.
In 2016, according to the ABA Women in the Law reported that 21.5 percent of the partners in those firms responding were women. In the courts, 33 percent of federal judges are women. In the Associate Ethnicity section of the 2016 NLJ 250/Am Law 200 Survey, Asian-Americans constituted 6.67 percent of lawyers at Am Law 200 and NLJ 250 firms; Latinos, 3.48 percent; African-Americans, 3.0 percent; self-described multiracial attorneys 1.69 percent; and Native Americans or Alaska natives, 0.18 percent.
Ironically, although large corporations have seen the value in diversifying their workforces, management and law departments, when these same corporations are considering or actually engage in litigation, their selection of diverse neutrals to mediate these disputes is often hampered by the lack of minority ADR practitioners. Like the lack of women ADR practitioners, this phenomenon is mainly attributable to what has been called both “supply side and demand side obstacles.”
The question then becomes how can corporations and corporate legal departments achieve greater diversity in their selection of ADR practitioners? To begin with, corporations could encourage their outside counsel both to diversify internally and to make a determined effort to hire more diverse neutrals when they decide to pursue ADR. This “encouragement” should come from the C-level because experience has demonstrated that the most successful corporate inclusion and diversity campaigns are those that are implemented with the full knowledge and support of C-level management.
Outside law firms that want to support a company’s diversity efforts could also independently seek out and utilize qualified minority neutrals outside their traditional network. Finally, ADR providers themselves could continue to focus on the recruitment and development of minority neutrals and promote them with the corporations and outside counsel who routinely use the providers’ services.
Of course, this is both a laudable goal and a highly practical one because diversity in mediation is not just good from a public relations standpoint, but it also contributes mightily to the early and inexpensive resolution of corporate litigation.